Chương 3 Nghị định 80/2005/NĐ-CP: Bán công ty nhà nước

Chapter III

SALE OF STATE COMPANIES

Article 15. Notices on decisions approving the sale and registration for purchase of companies, sections of companies

Notices on decisions approving the sale and registration for purchase of companies, sections of companies

The agencies which decide on sale of companies or sections of companies must publicize on the mass media and notify the companies or sections of companies of the selling decisions and organize the registration of purchasers of companies or sections of companies by mode of bidding or auction within 45 days. Past the 45 day-time limit, if there is only one registrant for the purchase, it shall be extended for 15 more days; if there is still only one registrant for the purchase, the companies or sections of companies shall be sold by direct mode.

The company directors shall notify them to the entire laborers in the companies, organize the registration of purchasers of the companies or sections of companies and send the lists thereof to the Enterprise Renewal and Development Boards of ministries, provincial-level People's Committees or State corporations.

Article 16. Organization of the sale of companies, sections of companies by bidding mode

Organization of the sale of companies, sections of companies by bidding mode

1. In cases where companies, sections of companies are sold together with employment of laborers and there are two or more registrants for purchase, the companies or sections of companies must be sold by mode of bidding.

2. Persons who decide on sale of companies, sections of companies shall set up the bidding councils, each comprising a representative of the agency deciding to sell the company, a representative of the finance agency of the same level, a representative of the corporation (if any), a representative of the company to be sold or the company having sections to be sold.

The bidding councils have the responsibility:

a) To promulgate the regulations on bidding and mode of marking bids;

b) To notify the purchase registrants to submit their applications for bidding participation, the minimum price level, the deposit amount, the deadline for submission of dossiers; publicize on the mass media and post up at the head-offices of the companies the bidding;

c) To organize and administer the bidding session;

d) To report to the agencies which decide to sell the companies, sections of companies on the bidding situation and results.

3. The purchasers shall file their applications for purchase of companies, sections of companies, made according to a form set by the bidding council and pay the deposits.

The bidding councils shall receive the applications, deposits and make lists of bidding participants and grant certificates to bidding participants.

4. The bidding participants may go to companies to study accounting books, asset lists and survey the actual situation of the companies, sections of companies; may be supplied by the Bidding Council with information on the bidding regulation, the principles for bid marking.

5. Within the registration time limit provided in Article 15 of this Decree, the purchase registrants must send their dossiers of application for bidding participation to the Bidding Council.

Such a dossier shall include:

a) The application for purchase of the company or section of the company (made according to a set form);

b) The scheme on employment of laborers working in the company or section of the company;

c) The projected type of new enterprise;

d) The price offered for purchase of the company or section of the company.

The bid dossiers must be put in sealed envelops.

6. Within 15 days as from the date of expiry of the time limit for dossier reception, the Bidding Councils send notices on bidding time and venue to every bidder. The Bidding Councils shall publicly post up the lists of bidders at the bidding venue for 5 days before the opening of bids.

7. Bids shall be opened within one day and as follows:

a) The Bidding Councils check the seals, publicly open the envelops of bidders one by one and announce the scheme on labor employment and the bid price offered by every bidder for recording in the minutes; announce the scheme on largest employment of laborers and the highest bid price offered by each bidder;

b) The presidents of the Bidding Councils and bidders shall sign the minutes on bid opening.

8. Bid consideration

a) The Bidding Councils shall consider, examine, analyze, evaluate and rank bid dossiers or hire functional counseling organizations to perform these jobs; base on the highest bid prices in combination with the labor employment schemes, the purchasing mode of debt inheritance or non-inheritance to select bid winners;

b) The Bidding Councils shall make records on bidding and send them to the Enterprise Renewal and Development Boards and the persons deciding on sale of companies or sections of companies.

Article 17. Sale of companies, sections of companies by mode of auction

Sale of companies, sections of companies by mode of auction

In cases where companies have completely settled the number of laborers or have their schemes on full labor employment approved under the provisions of law on labor and policies towards laborers redundant due to reorganization of state companies, if there are two purchase registrants or more, the companies or company sections must be sold by mode of auction under the Regulation on auction of state companies, promulgated by the Prime Minister.

Article 18. Sale of companies, sections of companies by direct mode

Sale of companies, sections of companies by direct mode

1. The mode of direct sale of companies or company sections shall apply only when there is only one purchase registrant.

2. Registrants for purchase of companies, sections of companies shall send their dossiers to directors or the Enterprise Renewal and Development Boards; the contents of the dossiers shall be the same as those stipulated for cases of selling companies, sections of companies by mode of bidding.

3. Registrants for purchase of companies, sections of companies may go to companies, sections of companies to study the accounting books, asset inventories and survey the actual situation of the companies, sections of the companies.

4. The Enterprise Renewal and Development Boards shall, together with company directors, exchange directly with the purchasers' representatives their opinions on contents of the trading contracts. The sale prices of companies with their total asset value of VND 30 billion or more as inscribed in the accounting books shall be determined in accordance with the provisions of Clause 5, Article 23 of this Decree and serve as a basis for negotiation with purchasers.

The Enterprise Renewal and Development Boards shall send dossiers and minutes to the persons who decide to sell the companies or sections of the companies.

Article 19. Responsibilities of the companies subject to complete sale or sectional sale

Responsibilities of the companies subject to complete sale or sectional sale

1. To inventory, determine the quantity of assets currently available in the companies or sections of the companies, including fixed assets and long-term investments, working assets and short-term investments, rented assets, leased assets, assets kept for others, consigned or appropriated; evaluate the actual conditions of such assets and recover receivable debts.

2. To classify assets currently available in the companies, sections of the companies into the following:

a) Assets, which can be further used;

b) Assets, which cannot be further used;

c) Assets formed from reward funds, welfare funds.

3. To compare and classify debts; make the lists of creditors and payable debts as well as receivable debts, to be further divided into recoverable debts and unrecoverable debts.

4. To make the financial statement of the quarter next to the time of selling the companies or sections of companies; draw up schemes on handling of assets, finance, debts on the principles defined in Articles 20 and 21 of this Decree.

5. To make the lists of, classify, and elaborate plans on rearrangement of, the existing number of laborers in the companies, sections of companies at the time of deciding to sell them:

a) The number of laborers subject to the implementation of social insurance policy;

b) The number of laborers enjoying the social insurance regimes on ailment, pregnancy and maternity, labor accidents and occupational diseases;

c) The number of laborers subject to temporary postponement of performance of labor contracts;

d) The number of laborers terminating labor contracts;

e) The number of laborers with labor contracts being still valid, who shall move to work in the post-sale companies;

f) The number of laborers awaiting jobs due to unavailability of jobs arranged for them.

6. To handle assets, finance, debts and labor under the plans approved by competent authorities and the contracts on sale and purchase of companies or sections of companies.

7. To hand over assets, books and relevant dossiers to company purchasers under the agreement inscribed in the trading contracts.

Article 20. Principles for asset and finance handling upon sale of companies, sections of companies

Principles for asset and finance handling upon sale of companies, sections of companies

1. Assets no longer needed for use, in stock, awaiting liquidation: Companies shall liquidate, sell or report them to competent agencies for transfer to other companies. By the time of valuating the enterprises, if these assets are yet handled, they shall be excluded from the value of the enterprises. In the course of sale, the companies shall continue handling these assets; if by the time of deciding to announce the enterprise value, they are still not handled yet, they shall be transferred to the companies trading in debts and unsold assets of enterprises.

2. Assets contributed as joint-venture capital or received as joint-venture capital; assets rented from outside, financially leased; assets borrowed or kept for others and other assets not owned by the companies: The asset sellers, purchasers and owners shall reach agreement on inheritance or liquidation of previously signed contracts or sign new contracts; appropriated assets shall be decided by authorities deciding on sale of enterprises.

3. For assets belonging to welfare facilities: crèches, kindergartens, infirmaries and other welfare assets formed from reward funds or welfare funds, they shall be transferred to new companies for management and use in service of labor collectives in the companies. Where purchasers only commit to employ less than 50% of the existing number of laborers of the companies or sections of the companies, the agencies which decide on the sale of the companies or sections of the companies may re-sell them to the company purchasers, or other organizations, individuals for division to the existing number of laborers in the companies, sections of companies.

Particularly for dwelling houses of officials and employees, including those invested with state budget allocations, they shall be transferred to local house and land management offices for management or sale to current users under the current regulations.

4. Assets invested with reward funds and/or welfare funds of the companies and continued to be used by purchasers in production and business activities shall be calculated into the value of the companies or sections of companies.

5. The pecuniary credit balance of the reward funds, welfare funds shall be divided to working laborers according to the actual number of years working in the pre-sale companies.

6. The expenses for unfinished construction of works postponed before the time of valuating the companies or sections of companies shall be settled under the agreement between the purchasers and the sellers in accordance with the interests of each party.

7. Reserves, undistributed losses or profits:

a) Reserves for: inventory price decrease, receivable bad debts, security price decrease, exchange rate differences shall be accounted into business results of the companies;

b) Reserves for job loss allowances: To be used by the companies to support redundant laborers in the course of selling the companies or sections of companies; the remainder, if any, shall be accounted into business results of the companies;

c) The risk reserve funds, operation reserve funds of the system of banks, insurance, financial institutions shall be transferred to the to be-sold companies for continued management;

d) The financial reserve fund shall be used to offset losses (if any), make up for lost assets, unrecoverable debts; the remainders shall be calculated into the value of the state capital portions at the companies;

e) The undistributed profits shall be used to offset the preceding year's losses (if any), to make up for lost assets, unrecoverable debts; the remainders shall be distributed according to current regulations before valuating the to be-sold enterprises;

f) The loss amounts by the time the sold companies shift to other forms of company shall be offset by the companies with the financial reserve funds and pre-tax profits up to the time of sale. In case of deficit, the measures of writing off the state budget debts and bank debts shall be applied under the State's current regulations on handling of outstanding debts.

If after applying the above-mentioned measures, the companies still suffer from losses, the losses shall be deducted from state capital.

Article 21. Principles for handling of debts of companies, sections of companies

Principles for handling of debts of companies, sections of companies

1. To be-sold companies or sections shall have to compare, certify and recover recoverable due debts before the sale; mobilize sources for payment of due debts or negotiate with creditors on handling thereof before the sale.

2. By the time of deciding to announce the enterprises' value, the selling companies shall have to hand over unrecoverable debts already excluded from their value (together with relevant dossiers and documents) to the company which trade in outstanding debts and assets of enterprises for handling according to law. For amounts pre-paid to goods and/or service providers such as house rents, land rents, goods purchase money, remunerations, they shall compare and calculate them into the companies' value.

3. For the remaining receivable debts and payable debts, depending on the conditions of trading with inheritance or non-inheritance of debts, they shall be handled according to the following principles:

a) Where the purchasers commit to inherit the debts, they shall have to pay the payable debts and recover the receivable debts under commitments; the commitments to inherit receivable and payable debts must be recorded in contracts on sale and purchase of companies or sections of companies and notified to the concerned parties;

b) Where the purchasers do not commit to inherit the debts, the to be-sold companies shall have to handle those debts according to the State's current regulations on handling of outstanding debts.

Article 22. Principles for handling laborers and managerial officials

Principles for handling laborers and managerial officials

1. Purchasers of companies or sections of companies shall have to receive laborers according to the labor employment schemes as committed upon the purchase of the companies. For laborers who voluntarily terminate their labor contracts, the current regimes shall apply.

2. The regimes towards laborers shall be as follows:

a) For laborers entitled to social insurance regimes, the directors of the companies or sections of companies and the social insurance agencies where the companies pay the social insurance premiums shall settle the interests for the laborers according to the current regimes;

b) For cases of terminating labor contracts, the laborers shall enjoy the regimes and policies under the legislation on labor and the policies toward redundant labor due to reorganization of state companies;

c) For laborers continuing to work in the new companies or new company sections, the directors shall have to carry out the procedures so that the social insurance agencies shall grant insurance books according to regulations and transfer the lists and dossiers of the laborers currently managed by the companies or company sections to the new enterprises.

3. For debts of social insurance premiums owed by companies and laborers, which were already collected by the companies, before the sale of companies, they shall be subtracted from the value of the state capital at the companies for payment of such debts. Where the state capital is reduced to none, the debt repayment shall be supported by the Enterprise Reorganization Support Fund at the Ministry of Finance.

4. Directors, deputy-directors and chief accountants of the companies shall be considered by the authorities that decide on the sale of companies, sections of companies on a case-by-case basis for job arrangement or settlement or entitlement to the job severance regime.

Managers showing irresponsibility which leads to business losses or state capital losses must not hold managerial positions at other state companies or state agencies.

5. After the issuance of decisions on sale of companies, sections of companies, if due to business reorganization or technological renewal, laborers in the sold companies or sections of companies lose their jobs or are subject to job severance, including voluntary severance, the cases shall be settled as follows:

Where the laborers lose or severe their jobs within 5 years as from the time of granting the business registration certificates, the new companies shall have to pay 50% of the total allowance level under the provisions of the Labor Code; the rest shall be covered by the State's proceeds from the sale of companies under the principles provided in Article 6 of this Decree. Beyond that time limit, the new companies shall have to fully pay the allowances to the laborers.

Article 23. Principles for determination of sale prices of companies, sections of companies

Principles for determination of sale prices of companies, sections of companies

1. General bases for determination of the minimum sale prices of companies, sections of companies:

a) Figures in the accounting books of the companies at the time of sale;

b) The current quality, technical properties, debt situation, business efficiency of the companies and the market prices of assets at the time of sale;

c) The use right value of the land being managed by the companies or sections of companies;

d) Sale with or without debt inheritance.

2. Principles for determination of land use right value upon sale of companies, sections of companies:

a) For land areas being used by companies or sections of companies as grounds for construction of working offices, transaction offices; construction of production and business establishments; land used for agricultural production, forestry, aquaculture, salt making (including land assigned by the State with or without the collection of land use levies), the companies may select the form of land rent or land assignment under the provisions of the Land Law:

- Where purchasers select the form of land rent, the land use right value shall not be accounted into the value of companies or sections of companies.

- Where purchasers select the form of land assignment, the land use right value must be accounted into the value of companies or sections of companies. The land use right value calculated into the value of companies or sections of companies shall be determined at the prices set by provincial/municipal People's Committees, which are close to the actual market prices of land use right transfer and announced on January 1 every year under the Prime Minister's regulations. The order and procedures for land assignment, land use levy payment and land use right certificate granting shall comply with the provisions of the current land law.

b) For land areas assigned by the State to companies, sections of companies for construction of houses for sale or lease; construction of infrastructure for transfer or lease, the land use right value must be calculated into the value of companies or sections of companies. The calculation of the land use right value into the value of companies, sections of companies shall comply with the provisions of Point a, Clause 2 of this Article.

3. The sale prices of companies, sections of companies, which are determined on the basis of the actual value of companies or sections of companies at the time of sale and acceptable to purchasers and sellers, shall depend on:

a) The conditions of trading with or without inheritance of debts; with or without calculation of land use right value;

b) The selling mode: auction, bidding or direct sale;

c) The mode of payment: in lump sum or installments;

d) The price discount for purchasers who commit to invest in maintaining production and business, ensuring jobs for laborers.

For purchasers inheriting rights and obligations of companies, sections of companies, the actual sale prices of companies shall be the actual value of the state capital portions at the companies at the time of sale, including the land use right value mentioned in Clause 2 of this Article and acceptable to purchasers and sellers.

For enterprise purchasers not inheriting the rights and obligations of companies, sections of companies, the actual sale prices of companies shall be the actual value of the entire assets currently available in the companies at the time of sale, including the land use right value mentioned in Clause 2 of this Article, which the purchasers wish to use, acceptable to the purchasers and the sellers.

4. When determining the actual value of companies, sections of companies with the total asset value of under VND 30 billion as inscribed in the accounting books, it is not necessary to hire the valuating organizations; the companies shall themselves determine their value and report it to the competent agencies for decision. For those companies, which fail to strictly observe the legal provisions on accounting and statistics, the agencies deciding on the sale prices of companies shall consider and hire independent auditing organizations for determination thereof. The audit hiring expenses shall be calculated into expenses for sale of companies, sections of companies.

5. For companies with the total asset value of VND 30 billion or more according to the accounting books, the valuation of company shall be conducted by organizations with function to valuate equitized enterprises, to be selected by the agencies deciding on the sale of companies or sections of companies from the list of valuating organizations, announced by the Ministry of Finance. In cases of selecting foreign valuating organizations, which have not yet operated in Vietnam, the agreement of the Ministry of Finance is required. For companies, which cannot be equitized and shall be sold, they may inherit the valuation results in the course of equitization.

The valuating organizations, when valuating the companies, must comply with the current legal provisions and complete the jobs on schedule under the signed contracts; must bear responsibility for the accuracy and legality of the valuation results.

The agencies competent to decide on the company value shall have to make verification before deciding on and announcing the sale prices of companies.

Article 24. Approving schemes on sale, sale prices, conclusion of contracts and issuing decisions on sale of companies, sections of companies

Approving schemes on sale, sale prices, conclusion of contracts and issuing decisions on sale of companies, sections of companies

At the proposal of the Enterprise Renewal and Development Boards, ministers, provincial-level People's Committee presidents and Managing Boards of state corporations shall perform the following jobs:

1. Approving the schemes on sale of companies or sections of companies and issuing decisions thereon. Such a decision shall include the following contents:

a) The name and address of the to be-sold company or company section;

b) The name and address of the purchaser;

c) The sale price, selling mode; the payment mode and deadline;

d) The time limit for conclusion of contract and hand over of company or company section;

e) Responsibilities of the company, the Enterprise Renewal and Development Board and relevant agencies in handling the existing and arising problems.

The decisions on sale and termination of operation of state companies, company sections shall be addressed to the offices of Enterprise Finance, Tax, Business Registration, Planning and Investment, and the Steering Committee for Enterprise Renewal and Development.

2. Organizing the signing of contracts with purchasers of companies or sections of companies. Such a contract shall cover the following principal contents:

a) The name and address of the to be-sold company or company section; its account number;

b) The name and address of the purchaser of the company, company section; account number (if any);

c) The sale price of the company or company section;

d) Commitments of the purchaser and the seller of the company or company section;

e) The mode of transferring assets, mode of payment for purchase of enterprise, the time limit for hand over of the company or company section;

f) The handling of arising problems or contractual disputes.

Enclosed with contracts are asset inventories, assessment of the asset conditions agreed upon by the purchasers and the sellers.

Article 25. Payment of deposits and handover of companies, company sections

Payment of deposits and handover of companies, company sections

1. In case of selling companies or company sections by mode of bidding or auction, within 10 days as from the date of signing the sale decisions, the Bidding Council or the Auction Council must pay the deposits to the bidding or auction participants who fail. The bidding or auction participants are not entitled to receive back their deposits in the following cases: winning but refusing to perform the contracts; withdrawing their bids after bidding closure. The bid winners' deposits shall be subtracted from their payments for purchase of companies, company sections.

2. Within the time limits agreed upon in the contracts, the Enterprise Renewal and Development Boards must organize the handover of enterprises to purchasers.

In case of handing over the assets of the companies or company sections with the actual quantity and conditions varying with those inscribed in the trading contracts, the purchasers may request the adjustment of the signed contracts in compatibility with the actual quantity and conditions of assets of the companies or company sections.

Article 26. Payment for purchase of companies, company sections

Payment for purchase of companies, company sections

Company or company section purchasers shall make payments within the time limits provided in the trading contracts, which, however, must not exceed two years as from the time of deciding on the sale of companies or company sections, of which the first payment must not be lower than 70% of the sale price.

Article 27. Business registration for companies, company sections after the sale

Business registration for companies, company sections after the sale

Where companies, company sections, after the sale, are transformed into new enterprises or dependent units, branches or representative offices of other enterprises, the purchasers must make business registration for the new enterprises at the business registries of the localities where the companies or company sections are headquartered or register to be dependent units, branches or representative offices of other enterprises according to the provisions of law.

The business registration dossiers must be enclosed with decisions on the sale of companies or company sections.

Article 28. Rights and obligations of company or company section purchasers

Rights and obligations of company or company section purchasers

1. To take initiative in using the purchased assets, select production and business lines, reorganize production, make new investments, change managerial apparatuses, decide on types of enterprises and continue renting the land according to the provisions of law.

2. In case of continuing to invest in development of production and business of companies or company sections, purchasers are entitled to inherit the interests of the companies as agreed upon in the contracts for sale and purchase of companies, company sections as well as signed economic contracts.

3. To make payments for company, company section purchase according to the time limits and conditions inscribed in the contracts for sale and purchase of companies, company sections; to strictly comply with the conditions and commitments to sellers of companies, company sections and provisions of law.

Article 29. Rights and obligations of foreign investors purchasing state companies

Rights and obligations of foreign investors purchasing state companies

The rights and obligations of foreign investors, foreign-invested enterprises, that purchase state companies, shall depend on the forms of enterprises transformed after the purchase under legal provisions of Vietnam and the Prime Minister's decision.

Article 30. Inspection and monitoring of realization of contractual commitments

Inspection and monitoring of realization of contractual commitments

The company, company section sale deciders shall have to monitor and inspect the realization of commitments made in the contracts for purchase and sale of companies, company sections; handle or propose competent state agencies to handle according to provisions of law cases of breaching the contractual commitments by purchasers.